Garcia v. Maketa
Filing
7
ORDER dismissing this action without prejudice, and denying leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 10/16/14. No certificate of appealability shall issue. (dkals, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-02414-BNB
DEAN RAYMOND GARCIA,
Applicant,
v.
TERRY MAKETA, El Paso County Sheriff,
Respondent.
ORDER OF DISMISSAL
On August 29, 2014, Applicant, Dean Raymond Garcia, initiated this action by
filing pro se a Petition for a Writ of Habeas Corpus Under 28 U.S.C. § 2241 and
submitting the $5 filing fee. At the time he filed this action, Applicant was detained at
the El Paso Criminal Justice Center in Colorado Springs, Colorado. On August 29,
2014, Magistrate Judge Boyd N. Boland entered an order and directed Applicant to
submit his claims on a proper Court-approved forms. Applicant was warned that the
action would be dismissed without further notice if he failed to cure the deficiency within
thirty days.
On September 23, 2014, Applicant submitted a Prisoner’s Motion and Affidavit
for Leave to Proceed on Appeal Pursuant to 28 U.S.C. § 1915 and Fed. R. App. P. 24 in
a Criminal Case. Magistrate Judge Boland then entered a minute order and directed
Applicant to explain to the Court, by October 8, 2014, why he had filed the Motion and
Affidavit and reminded him that he was required to submit his claims on a proper Courtapproved form.
On October 6, 2014, the envelope that contained the Order to Cure Deficiency
sent to Applicant was returned to the Court and marked “Return to Sender Attempted
Not Known Unable to Forward.” Rule 11.1(d) of the Local Rules of Practice of the
United States District Court for the District of Colorado-Civil states that a party must file
a notice of a new address within five days of any change of address. Applicant has not
submitted a change of address.
Because Applicant has failed to communicate with the Court and failed to cure
the deficiency within the time allowed, the Court will dismiss the action.
The Court also certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from
this Order is not taken in good faith, and, therefore, in forma pauperis status is denied
for the purpose of appeal. See Coppedge v. United States, 369 U.S. 438 (1962). If
Applicant files a notice of appeal he must also pay the full $505 appellate filing fee or file
a motion to proceed in forma pauperis in the Tenth Circuit within thirty days in
accordance with Fed. R. App. P. 24. Accordingly, it is
ORDERED that the action is dismissed without prejudice pursuant to Fed. R. Civ.
P. 41(b) for failure to cure the deficiency and for failure to prosecute. It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied. It is
FURTHER ORDERED that no certificate of appealability shall issue because
Applicant has failed to show that jurists of reason would find it debatable that the district
court was correct in its procedural ruling. See Slack v. McDaniel, 529 U.S. 473, 484-85
(2000).
DATED at Denver, Colorado, this
16th
day of
October
, 2014.
BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court
2
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